Writing for a 6-to-3 majority in which Justice John Paul Stevens defected from the liberal wing of the court, Chief Justice John Roberts issued a ruling upholding the material support for terrorism law which some human-rights organizations had criticized as too broad because it criminalized their efforts to support the nonviolent political and humanitarian efforts of groups designated as terrorist organizations by the State Department.
The Substance
The case involved a group, the Humanitarian Law Project, which wanted to offer two groups -- the Kurdistan Workers' Party (PKK) and the Libertarian Tigers of Tamil Eslam (LTTE) -- training for "how to use humanitarian and international law to peacefully resolve disputes" and "how to petition various representative bodies such as the United Nations for relief.” The question before the court was whether such activities fell under the government's prohibition against offering “training,” “expert advice or assistance,” “personnel,” and “service,” to organizations designated by the State Department to be terrorist organizations, and whether that prohibition violated the First Amendment. Both the PKK and the LTTE had been designated terrorist organizations by the State Department. It's hard not to imagine, though, that in the background, the kinds of groups the government is really concerned with are ones like Hamas and Hezbollah.
The majority held the law was constitutional, writing that such activities constituted conduct, not speech, and that "a person of ordinary intelligence would understand the term 'service' to cover advocacy performed in coordination with, or at the direction of, a foreign terrorist organization." Deferring to the Congress and the White House, Roberts wrote that "providing material support to a designated foreign terrorist organization -- even seemingly benign support -- bolsters the terrorist activities of that organization." Teaching nonviolent mediation, Roberts said, could be used by terrorist groups to lure "opponents into complacency" while "structures of the international legal system might use the information to threaten, manipulate, and disrupt." Furthermore, such support could be used "to legitimize and further their terrorist means."
Justice Stephen Breyer, in his dissent, argued that the majority could only offer hypotheticals to support its position that giving terror groups instructions in matters that might further their "legitimate" activities would also support their illegitimate ones, certainly not enough to justify the burden on the First Amendment. Breyer wrote that the majority's evidence that such support is "fungible" were "general and speculative," arguing that the government offered "no empirical information that might convincingly support this claim." He also argued that the legitimacy question was particularly troubling:
But this “legitimacy” justification cannot by itself warrant suppression of political speech, advocacy, and association. Speech, association, and related activities on behalf of a group will often, perhaps always, help to legitimate that group. Thus, were the law to accept a “legitimating” effect, in and of itself and without qualification, as providing sufficient grounds for imposing such a ban, the First Amendment battle would be lost in untold instances where it should be won. Once one accepts this argument, there is no natural stopping place.
Breyer added that the majority's standard "would automatically forbid the teaching of any subject in a case where national security interests conflict with the First Amendment. The Constitution does not allow all such conflicts to be decided in the Government's favor." In a dig to the conservative majority -- and perhaps as a way to show how the conservatives on the court deal with questions of free speech differently when corporations are involved--Breyer cites the Citizens' United ruling in defense of his position, which nearly all the justices in the current majority voted for.
Bottom line: Upholding the constitutionality of this law is a big win for the government, because the law's breadth is one of the big reasons why it has a 91 percent conviction rate in terrorism cases in civilian court. According to a 2009 report by Human Rights First, nearly half of the terrorism-related convictions since 9/11 have been under material support laws. I haven't really made up my mind myself yet -- my view is that the hypothetical scenario of such activities helping terrorist groups is convincing -- but if it were accurate then we'd have a lot of hard evidence instead of speculation*.
The Politics
The biggest winner here is Elena Kagan, who is heading into her hearings on Monday with a big success under her belt, having argued this case before the court. The fact that this victory was won on the battlefield of national security law is no less significant, given the efforts to paint Kagan as soft on terrorism and a secret proponent of Taliban-style Sharia law only a few months after they were gushing over her supposed John Yoo-like tendencies.
After this, liberals might also want to rethink their characterization of Justice Stevens as the leader of the civil-libertarian wing of the court. On the biggest terrorism-related case of his final term, Stevens sided with the conservative majority. To the extent that it's possible to know what Kagan thinks about anything given the fact that her career has been almost entirely spent giving private advice to clients, she may be more like Stevens than liberals initially assumed. Just not in the way they wanted her to be.
*Just in case it's unclear, I was commenting on the empirical question of whether such activities ultimately "help" the groups in question. On the merits I agree with Breyer, and I think it's somewhat absurd to treat someone teaching how to "resolve disputes" the same as someone who actively raises money for terrorist groups.
-- A. Serwer
